f 




f 


U ( 


jt 7 u-n 

U • 


i > 


LETTERS 





TO TIIE 


CHAIRMAN OF THE JUDICIARY COMMITTEE OF THE HOUSE OF 
REPRESENTATIVES OF THE UNITED STATES, 

FROM 

JUDGE SPRAGUE 

* * * 

OF MASSACHUSETTS, 

AND 

MR. COMPTROLLER WHITTLESEY, 

1 

RESPECTING AN OFFICIAL STATEMENT BY THE LATTER, ANNEXED TO A 
REPORT OF THE JUDICIARY COMMITTEE. 



BOSTON: 

1 8 5 2 . 

EASTBURN’S PRESS. 




A great number of extra copies of the original Report 
having, upon motion of the Committee, been printed for 
circulation, it was hoped and expected that they would 
have caused an equal number of copies of the following 
correspondence to have been printed. The press of 
business in the House, as it is said, gave the Committee 
no opportunity to present their Report, and it cannot 
now be made until the next session. In the mean time 
it is hoped that this publication may, in some degree, 
disabuse the public mind. 



NOV 2 4 1916 



Boston, Monday, March 8th, 1852. 


To the Hon. J. X. McLanahan, Chairman of the Commit¬ 
tee on the Judiciary of the House of Representatives . 

Sir: 

It was not until Saturday, the 6th inst., that I had 
any knowledge of the Report which was made by the 
Judiciary Committee to the House of Representatives 
on the 29th day of January last. 

At the end of that Report is a statement made by Mr. 
Whittlesey, to which I wish to make an immediate re¬ 
ply. That statement relates to six bills of costs on 
Indictments in the District of Massachusetts, and it spec¬ 
ifies and comments upon certain charges on six of those 
Indictments, three against one Crafts and three against 
one Wilson. Mr. Whittlesey, at the beginning, and 
again at the close of his statement, distinctly asserts that 
all those charges have been certified by the District 
Judge. 

In this Mr. Whittlesey has made a very great mistake. 

The fact is, I certified the charges in only one of 
those cases, and refused to allow them in each and all of 
the other five. And after such refusal I never heard one 
word respecting them, and had no idea that any of those 
charges in the five cases had been presented to the 
Department, until I read the Report of the Judiciary 
Committee on Saturday last. 




To appreciate the importance of this mistake, it is to 
be observed that the gravamen of Mr. Whittlesey’s alle¬ 
gations is, that there being several witnesses in jail who 
were brought up on each day during the trial of one of 
those indictments, the Judge has allowed to the late Mar¬ 
shal and the Clerk, fees for bringing up and returning those 
witnesses in each of the six cases, making those expenses 
six fold greater than they should have been. By means 
of his mistake, Mr. Whittlesey presents me as having 
multiplied those fees six times, when it is he himself 
who has made that multiplication, unintentionally no 
doubt, but still in a manner calculated to do an injury 
beyond estimate in money. I am confident that an 
inspection of the documents in his own office, and from 
which he made up his statement, will make the error 
manifest. By copies which have just been exhibited to 
me by Deputy Marshal Riley, and which he says were 
taken from those which he sent to Washington, it 
appears that there were six bills of costs, one of them a 
general bill embracing charges on ten Indictments, six 
of which were those above referred to. This bill con¬ 
tains the charges which I allowed, and at the foot of this 
are the names of four officers taxing and certifying the 
costs. 

Each of the other five bills embraces charges on one 
Indictment only. These are the charges which I refused 
to allow. At the foot of each of these five bills are the 
signatures of three officers only. My name is not there, 
as it would have been if they had been certified by me. 
That there may be no mistake as to what Document I 





5 


signed, I send herewith a copy. It represents the con¬ 
dition in which the original was, when it left my hands, 
it not being connected in any manner, with any other 
paper. This copy is taken from one which was retained 
in the Clerk’s office. There is no copy in that office of 
either of the other five bills of costs. 

I pass to other points less important but still worthy 
of notice. There is another mistake into which Mr. 
Whittlesey has fallen. It is respecting the fees of the 
Clerk in those five bills, which acquire some significance 
by his being introduced as my son. Upon reading Mr. 
Whittlesey’s statement every body is made to understand 
that all the costs therein mentioned have been presented 
to the Department for payment, including the Clerk’s fees 
for all the precepts mentioned in the five cases. The 
Clerk is now absent on a distant voyage, by order of his 
Physician. I am assured by the Deputy Marshal who 
made out and transmitted the accounts, that they con¬ 
tain no such claim, but that those fees amounting to 
$393, are omitted. I am further assured that this will 
be shown by the documents now in the Department. 
The facts I believe to be these. When those charges in 
the five cases were rejected by me, the papers were 
taken back by the Marshal, and I heard no more of that 
claim. It seems, however, that he determined to appeal to 
the Department, and made an account, including his own 
fees, but as he was not requested to embrace the Clerk’s 
fees in those cases, and had no interest to do so, he omitted 
them. With this account the Marshal sent as vouchers 
to sustain his claim, bills of costs, containing the charges 



6 


which I had refused to allow, embracing both Clerk’s and 
Marshal’s fees. Now this mistake of Mr. Whittlesey prob¬ 
ably arose from his not having carefully compared the 
account which was presented for allowance and payment 
with the vouchers by which it was to be sustained, but 
having taken it for granted that all the items in the lat¬ 
ter were embraced in the former. I would respectfully 
suggest that when a statement injurious to others is to 
be made to the Grand Inquest of the nation, by a public 
officer, founded on documents in his possession, it would 
be well that he should examine them until they are un¬ 
derstood. 

In the bill which I did certify, the fees of the Mar¬ 
shal are certainly very large and those of the District 
Attorney are very small, the latter being only $13.25 
on each indictment. I did not think that I had any power 
to diminish the one or to increase the other. If I had, I 
certainly should have done so, and transferred largely 
from the Marshal to the District Attorney, whose ser¬ 
vices as counsel were well worth the whole amount al¬ 
lowed to the Marshal. 

No objection has been suggested to the charges in the 
bill which I did certify; except that which may arise 
from the practice of bringing up and sending back 
prisoners as often as they are wanted in Court, whether 
as witnesses or defendants, by precepts from the Court; 
and which practice the committee disapprove. When 
I came into office in the year 1841,1 found it to be the 
established practice of the Circuit Court, thus to bring 
up witnesses who were in jail in criminal cases, by a 





7 


writ of Habeas Corpus, and again to commit them by 
warrant. Mr. Justice Story was then upon the bench 
and had presided in that Court for about thirty years, 
during which time he had himself tried nearly all the 
criminal cases. The same course was pursued so long 
as he remained upon the bench, and was continued under 
his successor Mr. Justice Woodbury, till his lamented 
death in September last. My predecessor Judge Davis, 
universally esteemed as one of the best of Judges, had 
been in office forty years, and was cotemporary with Mr. 
Justice Cushing, the predecessor of Judge Story. The 
former Clerk of the Circuit and District Courts, states 
that he knows that this was the invariable practice during 
the time that he officiated which was from 1830 to 1845, 
and that he knew it to have been so while his predecessor 
was in office. I have reason to believe that such has been 
the practice ever since the organization of the govern¬ 
ment. However that may be, I found it established by a 
judicial tribunal to whose decisions, I, sitting in the Dis¬ 
trict Court, an inferior jurisdiction, am bound to submit. 

In the year 1842, concurrent jurisdiction in all cases 
not capital was given to the District Court. When it 
thus became my duty to exercise criminal jurisdiction in 
the District Court, I followed as of course the precedents 
and the practice which had thus been established by su¬ 
perior authority. When I inquired into the reason of 
this practice, I was informed that, being dependent upon 
the State for the use of her jails, the officers of the 
United States must use them upon such terms as her 
officers prescribed, and the jailor, being a State officer, 


8 


over whom the United States had no control, would 
not receive a prisoner into his custody, nor permit one 
to be taken out, except by virtue of a precept from the 
Court. And also that when an officer was to convey a 
prisoner for a distance of nearly a mile, it was deemed 
proper that he should have a precept to show his au¬ 
thority. 

I am informed by the Clerk of the Municipal Court, 
in which all indictments under the State laws in the city 
of Boston except for capital offences are tried, that when¬ 
ever a prisoner is to be brought from the jail for trial, or 
witnesses to testify, it has been the practice in that court 
for thirteen years past, to issue precepts to bring them up, 
and that this is done on each day that their presence is 
required; that there was an escape or rescue between the 
Jail and the Court House, upon which the Grand Jury 
made a presentment, condemning the practice of allowing 
an officer to take a prisoner through the streets of Boston, 
without a precept; that the Court ordered this pre¬ 
sentment to be recorded, and thereupon adopted the 
practice of issuing precepts. Now I do not propose to 
go into any argument upon this subject, my purpose be¬ 
ing to state facts as plainly and briefly as possible. 

Under the practice as I found it established, the course 
was for the District Attorney to make application to the 
Clerk for such writs of Habeas Corpus, and warrants to 
commit, as he desired, and for the Clerk thereupon to 
issue them, the Attorney for the government being the 
officer whose duty it was to prepare and prosecute crimi¬ 
nal cases, and to determine what witnesses were neces- 





9 


sary, and when they should be required to attend. To 
avoid the mistakes and irregularities which might arise 
from issuing such precepts upon a mere verbal applica¬ 
tion, I made a rule, that they should not issue, except 
upon a request in writing, signed by the District Attorney, 
and I am informed by the present Clerk, that for all the 
w 7 rits of Habeas Corpus, and warrants to commit, men¬ 
tioned in those six cases, such written requests were 
made, and are now on file. 

There is another thing which calls for observation. That 
it may be understood, I must premise that criminal prose¬ 
cutions being conducted by the District Attorney, the 
costs are in the first place taxed by him, and his name is 
subscribed. They are then handed to the Clerk, who 
makes an examination, to see that they correspond with 
the records and fdes of Court, and then his name is affixed, 
after which they are submitted to the Judge for allow¬ 
ance. Mr. Lunt came into the office of District Attorney, 
just at the close of the trial, and his name is subscribed 
to these bills of costs, together with Mr. Rantoul’s ; thus, 
at the foot of each of the five is written: 

“ Taxed by It. Rantoul, Jr., Dist. Att’y. 

George Lunt, Dist. Att’y. 

Examined, S. E. Sprague, Clerk.” 

In the other, the names are the same, and to that only 
is subjoined. 

“ Allowed, Peleg Sprague, Judge.” 

Now Mr. Whittlesey begins by presenting what he 
states to be “ an Abstract of costs taxed and certified by 
the District Judge and Clerk, in the District of Massa¬ 
chusetts,” and in conclusion says, they were all u duly 
2 


10 


certified by Judge Sprague and his son, the Clerk of the 
District Court.’’ 

He has thus held up the Judge and Clerk, as the only 
officers who have anything to do with taxing and certify¬ 
ing those costs, wholly omitting the District Attorney. 
No one would imagine that that officer had any concern 
w T ith the matter, and thus in one case the responsibility 
which belongs to three officers is concentrated upon two, 
and in five cases, by suppressing one name, and supplying 
another, he has relieved from responsibility the officer 
wdio certified under his own hand, that he taxed the costs, 
and imposed it upon the Judge, who refused to allow 
them! 

Having been compelled to introduce the name of the 
late District Attorney, it is due to him to state, that the 
case of Crafts, was one of very great importance and 
difficulty, requiring great labor in the previous prepara¬ 
tion, and during the protracted trial, and that he per¬ 
formed his duty with great thoroughness and eminent 
ability, and taxed for himself in all the six cases, only the 
amount of $79.50. 

I respectfully request, that this communication may be 
laid before the Committee on the Judiciary, and that they 
would be pleased to give it the same publicity, as they 
did Mr. Whittlesey’s statement, and cause it in like man¬ 
ner to be placed among the printed documents of the 
House. 

I have the Honor to be, 

With great Respect. 

Your Obedient Servant, 

PELEG SPRAGUE. 



11 


TREASURY DEPARTMENT, 

Comptroller’s Office, ) 
April 8 th, 1852. \ 

ITon. James X. McLanahan, 

Chairman of the Judiciary Committee . 

Hear Sir : 

Your favor of the 7th was duly received accompanied 
by a letter addressed to the Committee by the Hon. 
Peleg Sprague, District Judge of the United States for 
the District of Massachusetts. 

Judge Sprague asserts I made a great mistake in 
saying, that certain bills of cost were approved by him. 

To ascertain who is mistaken, it is necessary to exam¬ 
ine the bills, and the manner they are connected together. 
The Caption of each bill is as follows: “ Bill of Costs on 
Indictments, District Court, March Term 1849 includ¬ 
ing District Attorneys, Marshals, and Clerks fees.” 

The six bills, are on seven sheets of paper covered by 
another sheet, all of which are closely and firmly secured 
at the top at the left hand by a narrow ribbon, the ends 
of which are covered by a thick seal of wax, impressed 
by the letters, U. S. M. the initials used by the United 
States Marshal. 

The caption of each is written at the top of the page, 
under which are drawn two lines in red ink. 

The first line of each bill under its caption commences 
as follows, to wit: 

“1849 No. U. S. by Indictment, vs.” 

The numbers are inserted in consecutive order from 1 
to 6 inclusive. 



12 


Each bill under its appropriate caption and number, is 
added up, and the aggregate stated at the close of the 

bill. 

The eight sheets thus secured, are folded in the usual 
form and endorsed “ Bills of Costs, Indictments District 
Court, March Term 1849.” Then follows in columns, 
the numbers, and the aggregate of the Marshal’s fees in 
each bill set opposite to its appropriate number. These 
sums are added up, to make a total sum of $6235.50.” 

At the bottom of each of the five first bills, is written 
as follows to wit: 

“ Taxed by R. Rantoul, Jr., District Attorney. 

“ George Lunt, District Attorney. 

“ Examined S. E. Sprague, Clerk.” 

At the bottom of the 6th bill is written as follows : 

“ Taxed by George Lunt, District Attorney. 

“ R. Rantoul, Jr., District Attorney. 

“ Examined S. E. Sprague, Clerk. 

“ Allowed Peleg Sprague, Judge.” 

Judge Sprague says “The fact is, I certified the 
charges in only one of those cases, and refused to allow 
them in each, and all of the other five,” and after such 
refusal, “ I never heard one word respecting them, and 
had no idea, that any of the charges in the five, had ever 
been presented to the Department, until I read the re¬ 
port of the Judiciary Committee on Saturday last.” 

These bills were presented to the 1st Auditor who first 
examines Marshal’s accounts when presented for settle¬ 
ment. His clerk on this branch of the public service, 
had no doubt the allowance of Judge Sprague at the bot¬ 
tom of the 6th Bill, was designed to, and did apply to all 
the bills that preceded it. 

The clerk in this office who examined the account, a 
gentleman long experienced in this business and who 


13 


maintains a high character for intelligence and fidelity, 
did not suspect it was the intention of Judge Sprague to 
confine his allowance to the particular sheet of paper on 
which his name was written nor to the bill designated 
No. 6. 

According to my recollection, and belief, I examined 
the allowance and signature of Judge Sprague, and sup¬ 
posed they referred to all the bills. 

Mr. Seaman, Chief Clerk in the office, who while in 
the practice in his legal profession was accustomed to ex¬ 
amine papers, and whose business in this office necessa¬ 
rily required him to examine numerous papers in manu¬ 
script : examined these bills to collect information, to be 
used in answering the calls of the Secretary of the In¬ 
terior on this class of cases, without suspecting the al¬ 
lowance of Judge Sprague did not extend to all the bills 
mentioned. From the manner the bills are attached to¬ 
gether, and endorsed, I cannot conceive of a different 
conclusion. 

Judge Sprague was pleased to say: “Now Mr. Whit¬ 
tlesey begins by presenting, what he states to be, ‘an ab¬ 
stract of costs taxed, and certified by the District Judge 
and Clerk in the District of Massachusetts, and in con¬ 
clusion says they were all duly certified by Judge 
Sprague, and his son the Clerk of the District Court.’ 

He has thus held up the Judge and Clerk, as the only 
officers, who have anything to do with taxing, and certi¬ 
fying these costs, wholly omitting the District Attor¬ 
neys.” 

The signatures of the District Attorneys were not 
mentioned by me in my communication to the Secretary 
of the Interior; because the law does not require them 
to certify the accounts, and therefore I did not.recognize 
them as having anything to do, in verifying the legality 
and accuracy of the bills. It is the duty of the Judge to 


14 


examine the accounts of Marshals, District Attorneys 
and Clerks of the Courts of the United States, and if 
found correct to certify them—Statutes at large Yol. 1, 
page 277, Act of May 8, 1792. 

It is the duty of the Clerk of the proper Court to cer¬ 
tify the accounts of Marshals, District Attorneys and 
Clerks, in addition to the certificate of the Judge—Yol. 
5, page 484, paragraph 167. 

I entertain a high regard for Judge Sprague and he 
may rest assured, I should have mentioned the District 
Attorney, if the law had made it their duty to verify the 
accounts. The Judge and the Clerk therefore, “ are the 
only officers who have anything to do with taxing and 
certifying these costs.” I placed the responsibility where 
the law placed it, and any one aggrieved by it, should 
blame the law and not an officer who acts under it. 

Judge Sprague is pleased to make the following asser¬ 
tion : “There is another mistake into which Mr. Whittlesey 
has fallen. It is respecting the fees of the Clerk in those 
five bills, which acquires some significance by his being 
introduced as my son. Upon reading Mr. Whittlesey’s 
statement, every body is made to understand, that all 
the costs therein mentioned have been presented to the 
Department for payment, including the Clerk’s fees, for 
all the precepts mentioned in the five cases. The Clerk 
is now absent on a distant voyage by order of his phy¬ 
sician. I am assured by the Deputy Marshal who made 
out and transmitted the accounts, that they contain no 
such claim: but that those fees amounting to $393. are 
omitted. I am further assured that this will be shown 
by the documents, now in the Department.” 

Judge Sprague has been misinformed in this matter, 
as will appear by the following extracts, from the five 
bills mentioned by Judge Sprague : 




15 


Bill No. 1. 


Clerk’s fees. Entry of Indictment, 


$5.00 

57.00 

55.00 

2.50 

1.50 


57 Warrants to Commit. 
55 Habeas Corpus, 
Recording, - 
Taxing, 


- $121.00 


(Here follow similar extracts from the other four Bills, 
amounting to $121,—$64,—$66, and $66, respectively.) 

Judge Sprague proceeds to say further: 

“ The facts I believe to be these. When those charges 
in the five cases were rejected by me, the papers were 
taken back by the Marshal, and I heard no more of that 
claim. It seems however, that he determined to appeal 
to the Department, and made an account including his 
own fees: but as he was not requested to embrace the 
Clerk’s fees in those cases, and had no interest to do so, 
he omitted them. With this account the Marshal sent, 
as Vouchers, to sustain his claim, bills of cost containing 
both Clerks and Marshal’s fees. Now this mistake of 
Mr. Whittlesey probably arose from his not having care¬ 
fully compared the account which was presented for al¬ 
lowance and payment with the vouchers, by which it was 
to be sustained : but having taken it for granted, that all 
the items in the latter were embraced in the former.” 

In the last quotation Judge Sprague is in error in 
these particulars : 1st. In stating, that the Marshal did 
not embrace the Clerk’s fees in the five cases mentioned. 
This error is proven by the extracts of the Clerk’s fees 
from the five bills of the Marshal. 2nd. In stating that 
the Marshal sent on any vouchers to sustain the Clerk’s 
fees. 

The reverse of what Judge Sprague states is the fact. 


16 


The Marshal included the Clerk’s fees in his own ac¬ 
count, as is proven by the above extracts, lie sent no 
voucher, other than the certificate of the Judge, and the 
Clerk. 

When the Clerk’s bill of fees is legal on its face, it is 
passed by the accounting officers, on the certificates of 
the Judge and Clerk. 

The laws cited, require the account to be verified by 
their certificates; and only by theirs. 

3rd. In stating that Mr. Whittlesey committed the 
mistake mentioned. 

Immediately following the last quotation Judge Sprague 
says ; “ I would respectfully suggest, that when a state¬ 
ment injurious to others is to be made to the Grand In¬ 
quest of the Nation by a public officer, founded on docu¬ 
ments in his possession, it would be well that he should 
examine them, until they are understood.” 

I shall leave it to the Committee and to the public to 
decide, whether, I merit the reproof. 

When the account of the Marshal was examined con¬ 
taining the account of the Clerk, the Marshal was out of 
office, and not having obtained a receipt of the Clerk, it 
was not legal, either to credit the Marshal with the 
Clerk’s fees, or to pay him the amount thereof in money. 
If Judge Sprague had endorsed his disallowance on the 
five bills mentioned, the accounting officers w T ould not 
have been mislead by their union with the sixth bill. 

In order to prevent any mistakes, as to what he did 
sign Judge Sprague sent a copy of the sixth bill to the 
Committee, and in respect of which he remarked: “ It 
represents the condition in which the original was, when 
it left my hands, it not being connected in any manner 
with any other paper.” 

The five bills disallowed, must therefore have been 
connected with the sixth bill in the manner mentioned 


17 


above, after they were disallowed, and after Judge 
Sprague had allowed the sixth bill. 

Whoever perpetrated the act did it, with the fraudu¬ 
lent intent to deceive the accounting officers, thereby to 
obtain money unlawfully from the Treasury for his own 
benefit, or for the benefit of others. 

The letter of Judge Sprague is returned to you. 

Most sincerely and respectfully yours, 

ELISHA WHITTLESEY. 


Boston, April 17th, 1852. 

To the IIon. J. X. McLanahan, 

Chairman of the Committee on the Judiciary of the 
House of Representatives . 

Sir : 

I have had the honor to receive yours of the four¬ 
teenth inst., accompanied by a copy of a letter to you 
from the Hon. Elisha Whittlesey. 

In a former communication Mr. Whittlesey had assert¬ 
ed that six bills of costs therein mentioned had all been 
certified by the District Judge of Massachusetts. In my 
Iteply this was denied and I distinctly stated that I had 
certified only one of those bills and refused to allow each 
and all of the other five. Here was an affirmative asser¬ 
tion on his part, and a denial on mine. Is his assertion 
true, or did he make a mistake, that is the question. 

It now appears that the ground of his assertion was 
the supposition that when I affixed my signature to the 




18 


one bill it was connected with the other five in the man¬ 
ner he has described. This is his sole ground; he pre¬ 
tends to no other. 

By my former communication it distinctly appeared 
that no such connection existed when I affixed my name. 
I sent a copy of the one which I signed, and stated that 
when it left my hands it was not in any manner connect¬ 
ed with any other paper. This assertion Mr. Whittlesey 
had before him when he wrote his last letter. He knew 
from whom he received the Documents, and had the 
means, by inquiry, to learn when and by whom they 
were put together, and the present appearance was 
given. If he has done his duty he has made that in¬ 
quiry. What is the result ? No one has been found to 
gainsay my assertion; and Mr. W T hittlesey himself does 
not controvert it. At the close of his letter he takes 
notice of it and then says, 

“ The five Bills disallowed must therefore have been 
connected with the sixth bill in the manner mentioned 
above, after they were disallowed, and after Judge 
Sprague had allowed the sixth bill. Whoever perpe¬ 
trated the act did it, with the fraudulent intent to deceive 
the accounting officers, thereby to obtain money unlaw¬ 
fully from the Treasury for his own benefit, or for the 
benefit of others.” 

The sole reason for his belief that I had certified all 
the Bills is thus entirely taken away. 

And now what does Mr. Whittlesey do? Does he 
say that by the deceptive acts of others he has been led 
into error, and thereby done injustice to a Judicial officer ? 
Does he frankly admit the error and endeavor to redress 
the wrong ? No! He insists that he made no mistake 
in asserting that I approved all the six bills. 

He begins by saying, 

“ To ascertain who is mistaken it is necessary to ex- 



19 


amine the bills, and the manner they are connected to¬ 
gether. ” He then describes the appearance which the 
Documents present connected as they now are, and then 
proceeds to discuss the question whether it is not to be 
inferred that my signature affixed to one bill, was in¬ 
tended to apply to the five which precede and are con¬ 
nected with it; arguing all along just as if it were con¬ 
ceded that the bills were so connected when my name 
was signed; and it is not until he comes to the very 
close of his letter, and after he has disposed of every 
other topic, that he notices the fact that they were not 
so connected. 

If Mr. Whittlesey had admitted that his assertion was 
erroneous, and had entered into this discussion merely 
to exonerate himself from blame in being led into error, 
I should have no occasion to say one word in reply. I 
feel no desire to inculpate Mr. Whittlesey, but I mean 
to demonstrate that I, at least, am blameless. 

Since my former communication, I have received, 
through the Hon. Mr. Appleton, what purports to be a 
fac simile of the Documents as they now exist in the 
Treasury Department. They are now before me. I re¬ 
affirm my former statement and distinctly declare that the 
one bill to which my signature is affixed, was not, when it 
left my hands, in any manner connected with either of the 
other five, that the first case in it began, as I believe, 
with the word and figure “ No. 1,” and that it had not 
upon it any word or figure indicating to me that it was to 
be connected with or had reference to any other paper 
whatever. I never heard of such connection till since I 
read the Report of the Judiciary Committee, and when I 
there saw Mr. Whittlesey’s assertion that I had certified 
the six bills, it was with utter amazement, being wholly 
at a loss to understand how he could have fallen into 

3 


20 


such a mistake. Bills of costs are never sent to Wash¬ 
ington by the Judge or Clerk, but always by the Marshal. 

I have made inquiry, and learn that after the one bill 
which I certified was taken from my presence, it was 
carried to the Marshal’s office, and there, without the 
knowledge of the Judge or Clerk, the other five were 
joined to it and the whole connected and endorsed, and 
then sent to Washington by the Marshal, to sustain his 
account. Of this neither the late Marshal nor his Depu- 
uty, Mr. Riley, make any secret, but have freely de¬ 
clared it, and I have no doubt will do so to the Commit¬ 
tee if inquired of. 

If the Committee entertain any doubt upon this sub¬ 
ject, I respectfully request that they would institute an 
investigation, and cause every person to be examined 
who can have any knowledge upon this subject. 

I proceed to another topic. It relates to the Clerk’s 
fees which Tvere rejected. In my former communication 
I stated that Mr. Whittlesey had made a mistake in sup¬ 
posing that payment of those fees had been claimed at 
the Department, and explained how that mistake proba¬ 
bly arose. I said that the Marshal made an account in¬ 
cluding his own, but did not include the Clerk’s fees; 
and that with this account the Marshal sent, as vouchers 
to sustain it, bills of costs containing both Clerk’s and 
Marshal’s fees. I further said that Mr. Whittlesey’s 
mistake probably arose from his not having carefully 
compared the account with the vouchers sent to sustain 
it, but having taken it for granted that all the items of 
the latter were embraced in the former. I thus expressly 
stated that those bills of costs did embrace the Clerk’s 
fees, and that the account did not. How does Mr. Whit¬ 
tlesey meet this? It is by extracting, with all due 
formality and precision, from the bills of costs, the items 
of Clerk’s fees which I said they contained, and then 


21 


gravely declaring that he had thereby proved that those 
Clerk’s fees were embraced in the Marshal’s account. 
He will not even now compare the account with the hills 
of costs sent to sustain it, but still persists in taking it 
for granted that all the items of the former are embraced 
in the latter. He seems even to confound the bills of 
costs with the account which I referred to. I must bring 
that account distinctly to view. I have obtained a copy 
from the Marshal’s office. It begins, 

“ Hr. The United States in account current with I. 0. 
“ Barnes, Marshal of the United States for the District of 
“Massachusetts, Cr.” 

The debit side embraces every thing which the Mar¬ 
shal claimed to have allowed and paid to him. The only 
item which has any reference to those bills is in these 
words: 

“Bills of costs on Indictments due Isaac 0. Barnes, 
Marshal, $6235.50.” 

Now the aggregate of all those bills, that is, the fees 
of all the officers, amount to more than the sum thus 
claimed, while the Marshal’s fees alone amount to pre¬ 
cisely that sum; thus proving that the Clerk’s fees were 
not included. 

Further than this, I am assured that all that the Mar¬ 
shal claimed of those bills of costs was allowed to him by 
the Department: Mr. Whittlesey, in one part of his 
letter, says that the Clerk’s fees could not be allowed, 
because the Marshal had no receipt from the Clerk. 
Just so. And for the same reason the Marshal did not 
claim them, knowing full well that he had no such 
receipt. 

Further than this, the Marshal’s account was made out 


22 


upon a printed blank, familiar to the accounting officers. 
One printed item on the debit side of the blank, is, 

“ To compensation of Clerk and Attorney.” 

Nothing is carried out against this, and the item itself 
is erased by drawing a pen through it, thus affirmatively 
apprising the accounting officers that Clerk’s fees were 
not claimed. 

For certainty, I herewith send a copy of the account. 

I again affirm that those fees of the Clerk in the five 
cases were not embraced in the Marshal’s account; and 
payment has never been requested either by the Clerk or 
any other person. 

There is another point: The District Attorney taxed 
and signed all those bills of costs, and thus expressly 
assented to their being allowed. This fact was wholly 
omitted by Mr. Whittlesey when making an elaborate 
statement holding up the Judge to condemnation for 
having made a decision against the Government. He 
would now treat that omission as of no importance, be¬ 
cause the statute does not require the certificate, that is, 
the assent of the Attorney. The law never requires the 
assent of ths attorney of the party to be charged before 
a decision. Bat the Judge may and does require him to 
say whether he absent or not to a bill of costs; and if his 
assent be given, it is material as a ground of judicial 
action. That it is important, every one must see; how 
important, will be fully appreciated by those conversant 
with judicial proceedings. 

By the established course of practice when a party is 
charged with costs, a Bill is taxed and if no objection be 
made, a judgment or decree for the amount is entered 
up, as of course, without the Judge looking at the bill, 
or in fact knowing anything of the items that go to 
make up the aggregate. This is done upon the assent 


23 


of the Attorney of the losing party, either express or 
implied. When objection is made, the Judge hears and 
rules upon it; but even then does not scrutinize any 
part not objected to. 

Will it be said that it is dangerous to leave so much 
in the power of the Attorney ? The same power exists 
and is constantly acted upon as to the whole subject 
matter of a suit however important. 

A single act or omission of the Attorney may be de¬ 
cisive, as by admitting evidence on the one side, or not 
producing it on the other, or making a concession of facts 
fatal to his cause ; and he may even make an agreement 
concluding the whole cause at once, and the Court may 
thereupon enter up judgment, without further inquiry. 
Nor are Government cases any exception. The District 
Attorney possesses and exercises the same power, and 
the Court upon his assent alone may make a decision or 
decree affecting the United States to the amount of hun¬ 
dreds of thousands, or millions of dollars. 

The assent justifies the Judge, and to suppress that 
fact when arraigning his conduct would be doing great 
injustice. But I have no occasion to invoke the aid of 
any such practice or principle, because I did in fact look 
beyond the assent of the District Attorney, and seeing 
an error of principle, rejected those fees in the five cases. 
In this I claim to have done at least my whole duty. 

In conclusion permit me to say that the Committee 
having received an official statement from a public officer 
of high reputation, and reposing as they had a right to 
do, entire confidence in its correctness, caused it to be 
published by the authority of the House of Representa¬ 
tives, and sent as a public Document, in the most impo¬ 
sing form, to all parts of the United States. The errors 
of that Statement have now been demonstrated, and it is 
shown to be as unjust as it is injurious to me and to the 


24 


Judiciary. It has made its impression upon thousands 
whom my voice can never reach. 

I respectfully ask of the Committee to take the most 
effectual means to redress the wrong that has thus been 
done, and arrest the mischief which is even now deepen¬ 
ing and extending. 

I have the Honor to be, 

With great respect, 

Your obedient servant, 

PELEG SPRAGUE. 


TREASURY DEPARTMENT, 

Comptroller’s Office, ) 

§th May , 1852. J 

Hon. J. X. McLanahan, 

Chairman of the Judiciary Committee . 

Dear Sir: 

The letter Judge Sprague addressed to you on the 
17th ult., which was placed in my hands by your kind¬ 
ness is returned. 

I shall not imitate the spirit or tone of Judge Sprague’s 
remarks. If the facts disclosed in his letter of the 8th 
March, had been known to me, when I reported on vari¬ 
ous subjects to the Hon. A. H. H. Stuart, Secretary of 
the Interior, on the 26th November last, the Certificate 
of Judge Sprague would not have been deemed to ex¬ 
tend to the first accounts in the package presented by 



25 


Mr. Barnes, the late Marshal for settlement. I acted in 
the matter from the evidence before me, and no one has 
examined this package, to my knowledge, who has not 
come to the same conclusion that the Accounting Officers 
and their Clerks arrived at, to wit: that the Certificate 
of Judge Sprague extended to all the Accounts that pre¬ 
ceded it. I contend if I came to the same conclusion 
that others have uniformly arrived at, having before 
them the same facts and evidence that were presented 
to me, I am not properly chargeable with having com¬ 
mitted official mistakes. It seems to me, Judge Sprague 
is determined not to be satisfied unless I confess I have 
been to blame—I cannot gratify him, because the facts 
do not justify it. 

In my communication to the Committee on the 8th 
ulto, I briefly described the Accounts and the manner 
they were connected and bound together, so as to form 
one paper or package. This was not to criminate or 
censure Judge Sprague, but to present the facts as they 
were derived from the Documents. Having so presented 
the facts, I proceeded to notice what Judge Sprague 
said. He stated in his letter to the Committee, that he 
certified only one paper or account, which was not con¬ 
nected with any other paper or account. 

I did not controvert, nor doubt it, but placing the ut¬ 
most reliance on his statement, I was led to assert a fraud 
had been perpetrated, by connecting the sixth bill with 
the five bills disallowed by Judge Sprague, and after 
such disallowances, with the intent to deceive the ac¬ 
counting officers and thereby to obtain money unlawfully. 
My intention was to do the most ample justice to Judge 
Sprague. 

The Committee will see, however, on the 4th page of 
the letter under consideration, that he takes exception to 
my deferring the statement of the fact to the close of 


26 


my letter. It did not occur to me that it made any 
difference whether it was noticed at the beginning or end 
of my letter. It was inserted in that part of the letter 
which seemed to me to be the most pertinent and proper. 

I invite the attention of the Committee to parts of 
Judge Sprague’s letters of the 8 th of March, and 17th of 
April, in which he speaks of the Clerk’s fees. To pages 
four and five of the letter of March 8 th where he says* 
" There is another mistake into which Mr. Whittlesey has 
"fallen. It is respecting the fees of the Clerk in those 
" five bills, which acquires some significance by his being 
" introduced as my son. Upon reading Mr. Whittlesey’s 
"statement everybody is made to understand, that all 
" the Costs therein mentioned have been presented to the 
" Department for payment, including the Clerk’s fees, for 
"all the precepts mentioned in the Five Cases. I am 
"assured by the Deputy Marshal who made out and 
"transmitted the Accounts, that they contain no such 
"claim, but that those fees, amounting to $393, are 
" omitted.” 

Judge Sprague seeks to make me responsible for the 
inference of the community, or for what, he says, is the 
inference of everybody. On the 26th of November, 
1851, in obedience to the requirement of the Secretary 
of the Interior, I reported to him, in relation to the 
Accounts of the officers of the Federal Courts. In that 
report is this caption. 

"Abstract of Costs taxed and certified by the District 
"Judge and Clerk in the District of Massachusetts.” 
Printed Report No. 50, page 17,1 then proceeded under 
that caption to present the amount of Marshal’s Fees in 
six Criminal Cases, which was - - $6,147 55 

I then stated that the Clerk’s fees in the six cases 
amounted to @587 70, and that the Attorney’s fees 
amounted to - - - - . $79 50 


27 


I also stated I had written to the Clerk for informa¬ 
tion, and had not received a reply. The Report concluded 
as follows : 

“ The charges above referred to, appear in the account 
“of I. 0. Barnes, late Marshal of Massachusetts, and 
“were all duly certified by Judge Sprague, and his son, 

“ the Clerk of the District Court.” 

Taking the papers as they were presented to me, not 
doubting they all formed one Document or paper book, 
certified at the bottom of the last account, I submit to 
the Committee whether every word I said in relation to 
these Costs and to the Certificate of the Judge and Clerk 
is not true. Nothing was said about the Clerk having 
presented his account for payment. The true issue is, 
were the accounting Officers and their Clerks to blame 
for not detecting the fraud that was practiced in attach¬ 
ing the accounts together, and for not detecting the 
forgery committed in the erasure of figures, so as to 
make the accounts appear as one paper, and the Certifi¬ 
cates of the Judge and Clerk apply to all that preceded 
them. Were the accounts now before me as they were 
on the 26th November last, without the knowledge of the 
facts since disclosed, I should make precisely the report 
I made then, I say, that no officer with reasonable and 
ordinary diligence would detect the fraud and forgery. 

In his letter of the 17th of April, in regard to the 
Clerk’s fees, Judge Sprague says, “I proceed to another 
topic; it relates to the Clerk’s fees which were re¬ 
jected. In my former communication I stated that Mr. 
Whittlesey had made a mistake in supposing that pay¬ 
ment of those fees had been claimed at the Department, 
and explained how that mistake probably arose.” 

I do not find any allegation in his letter of the 8th 
March, that I supposed his son had claimed payment of 
his fees. In that letter, he averred, the public drew that, 


28 


inference, but he (lid not say I drew it or supposed it to 
be the case. No person acquainted with the manner of 
settling those accounts would come to that conclusion, 
without the receipt of the Clerk was presented by the 
Marshal, or he had made a personal demand for payment. 
This I say however, as I did in my former letter, that if 
the Clerk had demanded his fees I should have paid 
them, not doubting that both the Certificate of the Judge 
and the Clerk covered them. I should not have paid 
them to Mr. Barnes, because he was out of office, and it 
would not have been legal to have advanced him money. 
In order to raise a new issue and to divert the public 
mind from the one formed by my report of the 26th No¬ 
vember, Judge Sprague accompanies his letter of the 
17th ultimo, with the copy of an account current, which 
Marshal Barnes presented, which included his own fees 
only. Being out of office, he could not include any 
other fees, unless he had paid them. 

Judge Sprague did not certify that account current nor 
does the law require him to certify it. That is not the 
account mentioned in the statute which requires his Cer¬ 
tificate, but it is the account which contains the costs 
stated in detail. In that account the costs of the Clerk 
are taxed and certified, if the paper is not vitiated by 
fraud or forgery. 

That there may be no misunderstanding or mistake in 
this matter, I send to the Committee the original accounts 
as attached together, and a copy for the use of the Com¬ 
mittee, as the original must remain on file. The Com¬ 
mittee will see that no Certificate to the account current 
was made nor alleged to have been made, and that the 
copy of the Account Current has nothing to do in the 
case. From the evidence produced the account of Mar¬ 
shal Barnes would have been settled without an account 
current, and so would the account of the Clerk. Neither 




the claim of the Marshal nor the Clerk, could have been 
settled unless the accounting officers had fully believed 
the Certificate of Judge Sprague covered them which 
was at the bottom of the sixth account as the accounts 
were connected together. 

I invite the attention of the Committee to what Judge 
Sprague says on pages 10 and 11 of his letter of the 
17th April as to the manner of taxing costs. 6i By the 
established course of practice when a party is charged 
with costs, a bill is taxed, and if no objection be made, a 
judgment or decree for the amount is entered up as of 
course, without the Judge looking at the bill, -or in fact 
knowing anything of the items that go to make up the 
aggregate. This is done upon the assent of the attorney 
of the losing party, either express or implied. Where 
objection is made, the Judge hears and rules upon it; but 
even then, does not scrutinize any part not objected to.” 

This is a very important disclosure put upon record, 
where it should be, and should remain there, so long as 
it is contended by these officers or Judges, that the 
certificate of the Judge is conclusive upon the accounting 
officers. 

It appears then, that Judge Sprague adopts the prac¬ 
tice in private suits to those that are prosecuted by the 
United States. 

In private suits there are opposing counsel who are 
watchful and vigilant to guard the interests of their cli¬ 
ents. The counsel receive but a small part, if any, of 
their compensation by the fees that are taxed, but by 
an agreement, or on the principle of a quantum meruit. 
The closer they scrutinize the bill of costs, the more 
they commend themselves to their clients, and lay the 
foundation for increased compensation. 

But it is entirely different in suits prosecuted by the 
United States. The District Attorney receives his com- 


30 


pensation by his fees principally. He is the person to 
object if costs are taxed too high. The costs are taxed 
by the Clerk for the benefit of himself, the Marshal and 
District Attorney. And according to Judge Sprague’s 
practice it makes no difference with him, as to the 
amount; if these officers have no compunctions of con¬ 
science he signs the accounts as they present them, and 
the Judge with some triumph asks the question “ will it 
be said, that it is dangerous to leave so much in the 
power of the Attorney.” 

If the District Attorneys, are to take whatever money 
they choose from the Treasury, it would be best to have 
the power established by law, and to avoid partiality, the 
privilege should be extended to all honorable claimants. 

I deeply regret to have innocently caused so much dis¬ 
cussion by discharging what I supposed to have been my 
duty to the Secretary of the Interior and to the public. 

The manner in which the public money is expended is 
a proper subject for investigation; but who ever at¬ 
tempts to correct extravagancies, or correct abuses, may 
rest assured he will be assailed. 

Most respectfully, 

And sincerely yours, 

ELISHA WHITTLESEY. 


31 


Boston, June 8th, 1852. 

To the IIon. J. X. McLanahan, 

Chairman of the Judiciary Committee of the 
House of Representatives . 

Sir: 

I have this day received from the Hon. Mr. Apple- 
ton a copy of a letter to you from Mr. Whittlesey, bear¬ 
ing date the 6th of May. 

There are three main points in discussion. 

First. Mr. Whittlesey, in his original communication, 
asserted that I had certified six bills of costs therein 
mentioned. In my Beply I stated that in this Mr. Whit¬ 
tlesey was mistaken, and that I had certified but one of 
those bills. At the close of his next letter Mr. Whittle¬ 
sey makes some remarks which, although not a direct 
and explicit withdrawal of the charge against me, might 
have been deemed an exoneration, if they had stood 
alone; but nearly three pages of that letter, and seven- 
eighths of all that he said upon this topic, were devoted 
to an argument to prove that he was not mistaken in 
asserting that I had certified the six bills, and that I was 
mistaken as to that fact. To this I made an answer. 
Mr. Whittlesey in his last letter unequivocally admits 
that I certified only one of those bills ; but he seems to 
have great repugnance to the word mistake. I used it 
as the mildest term. I willingly drop it, and say only 
that the assertion that I certified those six bills is not 
true; and being now admitted to be untrue, I am content 
there to leave it. 

Mr. Whittlesey seems to contend that the true issue is 
whether the accounting officers were to blame for being 


misled by the appearance of the Documents. I have 
made no such issue, and have entered into no such dis¬ 
cussion, but have gladly left to Mr. Whittlesey the full 
benefit of all he could say in that respect. 

Second. In his first letter, Mr. Whittlesey in making 
a statement of charges which had been presented to the 
Department for allowance and payment embraced the 
Clerk’s fees in the five rejected cases, and thus repre¬ 
sented that those fees had been presented for payment. 
Five of those bills of costs had been rejected by me. It 
was important to show that the clerk had nothing to do 
with sending them to the Department, and that no claim 
for payment of his fees had been made. This it was my 
purpose to show, and in reply I contended that those fees 
had not been presented for payment, and I pointed out 
how Mr. Whittlesey’s mistake arose. ^That after the five 
bills had been rejected, the Marshal made an account in 
which he embraced his own fees but not those of the 
Clerk: that with this account the Marshal sent, as 
vouchers to sustain his claim, those bills of costs, and 
that Mr. Whittlesey’s mistake probably arose from his 
not having carefully compared the account with the 
vouchers. In his answer to this Mr. Whittlesey did not 
say that he had not intended to represent the Clerk’s 
fees as having been presented for payment; but insisted 
that “ the Marshal included the Clerk’s fees in his own 
account,” and to prove this, made an argument containing 
large extracts from bills of costs. In my reply to this I 
sent a copy of the account which I had described in my 
first letter. And this Mr. Whittlesey in his answer calls 
making a new issue ! In order to understand that answer 
it is necessary to observe that bills of costs are there 
uniformly called accounts, although he had previously 
freely used the name “ Bills of costs.” This peculiarity 
in the use of terms being understood, it will be seen that 





33 


his last letter distinctly admits that those fees were not 
presented for payment. My object is attained, and I am 
in this respect content. 

Third. All these bills of costs were taxed and certi¬ 
fied by the District Attorney. This fact, apparent on 
the face of the Documents, Mr. Whittlesey wholly 
omitted in making his original statement. To this omis¬ 
sion I took exception, as keeping out of view a fact 
which was material. In reply Mr. Whittlesey states as 
a reason for this omission, that the statute did not require 
the certificate of the District Attorney. In my answer 
I controverted the sufficiency of this reason and insisted 
that the fact was nevertheless important. Thus the 
question was on the validity of Mr. Whittlesey’s ex¬ 
cuse or justification. I should have been content to leave 
this without further remark, had not Mr. Whittlesey, in 
his last letter, introducing irrelevant matter, asserted that 
it is my practice in criminal cases to certify bills of costs 
without examination, upon the assent of the District 
Attorney. lie rests this assertion entirely upon a pas¬ 
sage in my letter in which I state the practice in civil 
cases. He quotes the passage. It will be observed that 
I there speak of the established practice when a party is 
charged with costs, and of a judgment or decree for the 
amount being entered up upon the assent of the attorney 
of the losing party. This description can apply only to 
civil actions. A judgment or decree for costs is never en¬ 
tered up in criminal cases. This was introduced argu¬ 
mentatively while maintaining the proposition that in 
criminal cases the assent of the District Attorney was of 
much importance. If such had been the established 
practice in criminal cases I should have so stated, for 
that would have been directly to the purpose; I should 
not have deemed the practice established without higher 
authority than mine; but civil cases could only be used 


34 


by way of argument from analogy. Mr. Whittlesey, in 
his last letter, not content with urging in reply that civil 
and criminal cases are not analogous, and that the prac¬ 
tice in the former ought not to be deemed applicable to 
the latter, goes further and insists that I actually adopt 
that practice in criminal cases: pronounces that passage 
an “important disclosure,” exults that it is now “on 
record,” and afterwards says, “according to Judge 
Sprague’s practice it makes no difference with him as to 
the amount. If these officers,” (the District Attorney 
and Clerk,) “have no compunctions of conscience, he 
signs the account,” i. e. Bills of costs, “ as they present 
them.” Suppose that while contending that parents 
should have power over their children, I should say that 
in some countries they exercise the power of life and 
death; and thereupon Mr. Whittlesey, instead of merely 
saying that it is no rule for us, should assert that Judge 
Sprague actually exercises that power. Mr. Whittlesey’s 
logic would have been sufficiently bold even if my letter 
had stopped where his extract stops: but it does not. 
After a few other cases put argumentatively it proceeds 
thus:— 

“ But I have no occasion to invoke the aid of any such 
practice or principle, because I did in fact look beyond 
the assent of the District Attorney, and, seeing an error 
of principle, rejected those fees in the five cases.” 

This is the only statement I made as to what I had 
practically done; and yet with this statement before him, 
and in the face of five bills of costs, which I had actually 
rejected, although taxed and certified by the District 
Attorney, Mr. Whittlesey asserts that it is my practice 
to certify bills of costs without examination, upon the 
assent of the District Attorney. 

To end this collateral matter at once, I now say such 
is not my practice and has never been. I examine every 





35 


bill of cost after it has been taxed and certified by the 
District Attorney. This is known to every District At¬ 
torney, and every Marshal, and every Clerk, whether of 
the Circuit or District Court, who has officiated at any 
time while I have been in office. 

I abstain from remarking further upon irrelevant mat¬ 
ters, and the spirit in which they are introduced, and re¬ 
turn to the true issue. Bills of costs are to be certified 
by the Court, or one of the Judges. They contain mat¬ 
ters of which the Judges have no personal knowledge. 
They are not Attorneys for the Government, and they 
call upon the officer who conducted the prosecution, and 
who is bound to protect the Government against improper 
charges, and they attach importance to his certificate. 
In judging of their conduct in allowing a bill of costs, 
the fact that the District Attorney, upon his official 
responsibility, has certified it to be correct, is material, 
and to keep that fact out of view when making a state¬ 
ment of the case, holding up the Judge to censure, is do¬ 
ing injustice. The effect in the cases we have been dis¬ 
cussing is such as I described in my first letter. 

At the close of this letter Mr. Whittlesey seems to ap¬ 
peal to the sympathy of the Committee. The first Comp¬ 
troller of the Treasury made an official statement which 
has been sent as a public document to all parts of the 
United States. That statement contained errors of fact, 
and did great injustice to a judicial officer. That officer, 
in self vindication, has pointed out the errors and made 
the injustice manifest. Is this indeed a hard case for the 
Comptroller ? 

I respectfully repeat the requests made at the close of 
my former communications, and ask that the Committee 
would be pleased to give to this letter and the whole 
correspondence, the same publicity that was given to 





36 


Mr. Whittlesey’s first communication, and cause them to 
he placed in like manner among the printed Documents 
of the House. 

I have the Honor to be, 

With great respect, 

Your obedient servant, 

PELEG SPRAGUE. 


Note 1. Some persons have understood by the Report 
that a separate precept was issued for each witness. 
Such was not the fact, nor does Mr. Whittlesey so repre¬ 
sent it, but that the six witnesses were put into one 
precept in each case. 

Note 2. Since the foregoing correspondence, a mate¬ 
rial fact has been stated in the affidavits of Patrick 
Riley and Frederick Warren, made on the 16th of June 
last, which is that those six bills of costs were never 
duly certified by the Clerk as required by statute: and 
it is admitted in a letter from Mr. Whittlesey to the 
Honorable Wm. Appleton, dated the second day of August, 
that the only certificate made by the Clerk, was by 
writing the word u Examined ” and subscribing his name 
at the foot of each bill, as set forth in the first Reply. 
That was the certificate required by the Judge prior to 
the Act of 1842. It imported that the Clerk had 
examined and found the bill to agree with the Records 
and Files of the Court. By the Statute of 1842, it 




37 


was required that in addition to the certificates then 
required by law, the Clerk should certify “that the 
services have been rendered, and the supplies furnished 
for and used by the Court, and that the charges therefor 
were legal and proper.’’ 

It is stated by the officers above mentioned, that ever 
since the Act of 1842, all the claims of the Marshal, 
including as well bills of Costs, having upon them the 
certificate by the word “ Examined,” as other claims, have 
invariably been accompanied by a certificate in the terms 
specified in that Act, and prescribed in printed forms 
furnished by the Department; and as to charges in crim¬ 
inal prosecutions, that certificate was in the following 
words; 

“ I---— Clerk of the above mentioned Court 

hereby certify that I have examined the within abstract 
and the vouchers therein referred to, and that in my 
opinion the services have been rendered as therein 
charged, and the charges therefor are legal and proper: ” 
and that in every instance except that of the six bills 
referred to, when bills of costs have been sent to the 
Department, they have been accompanied by other 
charges in criminal prosecutions, and the whole covered 
by a certificate in the above form. 

It thus appears that not one of those six bills was 
duly and legally certified by the Clerk. This doubtless 
arose from the Clerk’s having refused to make the usual 
certificate after the decision of the Judge, or from his 
not having been requested to do so. 

The result is, 

1st. That the assertion in Mr. Whittlesey’s original 
Report, that the Judge had duly certified the six bills of 
costs, is not true. 

2d. That the representation that the Clerk’s fees in 



38 


LIBRARY OF CONGRESS 



0 028 001 900 8 


the five bills have been presented for allowance and pay¬ 
ment, is not true. 

3d. That the District Attorney did tax and certify 
all those bills of costs, he having caused all the charges 
and made written requisitions upon the Clerk for every 
precept that was issued, and yet his name is kept out of 
view in regard to the taxation of costs. 

And from the facts above set forth it now seems, 

4th. That the assertion that those six bills were duly 
certified by the Clerk, is not true. 

What reputation is safe when such errors are found 
in an official Document, under the hand of the first 
Comptroller of the Treasury, and intended for the inform 
mation of Congress and the people. 

P. S, 


Boston , September tth, 1852. 





